Should Free Speech be Restricted?

David Tamez

University of Kansas

In recent months, much has been made of platforms such as YouTube and Facebook utilizing custom made algorithms to stem what they view as harmful speech. But, as we learned in our discussion about artificial intelligence, these algorithms can sometimes do more than what the creator intended. For example, in the case of the algorithms utilized by Facebook and YouTube, many accounts that are not extreme in any reasonable sense are “de-monetized” or completely “de-platformed.” A number of questions can be raised simply on the reliance on technology and algorithms to choose which accounts should considered “hateful” and therefore should be removed or de-monetized. But, for now I focus on the more general issue of eliminating or debasing any kind of speech from the public forum.

Here are some of the reasons often cited for regulating free speech. First, there are many who emphasize (and rightly so) that words do have harmful affects. To deny that words have harmful affects would put into question the utility bullies find in identifying weak spots in a person’s life and intentionally using that weakspot as the focus of their verbal jabbing. Second, not only do words have harmful affects, but supporting their continued use or expression in light of contrary facts would appear to fly against the primary commitment to truth, especially within political discussions and deliberations. Many of those who are in favor of regulation argue that when a person willfully puts forth a false claim hoping to persuade others to their side (because it benefits them or simply because they are equally unwilling to be convinced they are false) is contrary to even founding principles on well-informed political debate. Our country has a well-known tradition of being founded on classical principles of scientific inquiry informed by facts and careful analysis. Given, that much of the targeted speech to be considered for possible regulation or censorship adds little to no value to public debates or conversations regarding morality, politics, and justice, it is unclear why we should continue tolerating such uses of speech.

The U.S. Constitution is quite clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” But, plenty of occasions have occurred over the last few years that challenges the liberal commitment to an all-or-nothing interpretation of the First Amendment as it pertains to free speech. Far-Right commentators espouse hateful rhetoric, sometimes in the form of Western triumphalism, at the expense of racial and religious minorities. Given this absolutist commitment, a high threshold has been place on any sort of policy that seeks to curb hateful rhetoric. Where does this commitment come from? The most commonly referred to source is John Stuart Mill’s On Liberty, where the 19th century philosopher defends a limited government more generally. Here, we will take a look at Mill’s defense of society’s limited role in restricting speech and Brian Leiter’s critique of unregulated speech.

First, it should be noted that Mill is a utilitarian. To be a utilitarian is to adopt the following principle of right action: an act is right if and only if it maximizes happiness (and this could be understood in a number of ways) and wrong insofar as it does the opposite. For example, when a utilitarian is faced with a scenario where they are to choose between keeping a promise to a friend against keeping a promise to five other friends, the utilitarian will choose to keep the latter promise (all things being equal). To be clear, utilitarianism is more of an evaluative principle rather than a principle to base one’s decisions on. In fact, given that people are so porous at determining what they actually prefer and are poor predictors of what consequences will ensue, it would be unreasonable to require the average person to weigh in advance all the possible consequences their actions may have.

So, what does this or maximizing happiness for the greatest number have to do with free speech? Well, Mill seeks to argue that unregulated and open speech is always more maximizing than even the slightest bit of regulation. There are both epistemic reasons (reasons having to do with how we come to form knowledge) and practical reasons that justify unregulated speech.

One reason, according to Mill, that we should prefer not to endow any government the power to suppress speech of any sort is that the targeted speech may turn out to be true, and do deny this is to assume that human judgement infallible (incapable of error). But, human beings are not infallible when it comes to determining absolute truths. Therefore, anything that any person or any government targets as speech worth suppressing may be subject to significant errors in reasoning. Now, these errors can occur independently of bad motives.

Second, even if the targeted opinion were to be deemed false or were to fail under scrutiny, it may nonetheless hold a bit of truth. Now, this of course depends on the particular opinion in question, but this is just say that any general suppression of an opinion may run into enforcement issues such as the targeting of peripheral opinions. These peripheral opinions may hold a grain of truth to them. Not all speakers have sufficient abilities to present their points or positions as eloquently as others. This can be true even of philosophers and the most educated members of a community. Given this, we risk dismissing a position simply because it was not presented in the most eloquent of ways. This is where the principle of charity (an adopted principle here at Lawrence Talks) becomes useful and necessary.

Third, history has demonstrated that even the most indubitable truths are met with initial scrutiny. Humanity has demonstrated not just unreasonable skepticism when it comes to matters of truth, but may also be simply unwilling to accept a truth that will alter their way of life in fundamental ways. Here, Christians might point to the years of persecution they received at the hands of the Romans early in their development. To be fair, this skepticism is not always unreasonable. We should be skeptical when someone offers a proposition they believe to be self-evident or obviously true. This is a healthy disposition to have even with our friends. In fact, I would propose that anyone at anytime you are offered an argument or an unquestioned claim ask the simple question: “Is that true?” and then conduct meaningful research into the topic.

Together these principles represent the ‘market place of ideas’ approach to freedom of speech considerations. The expectation here is that all ideas, arguments, claims, no matter how reprehensible they may appear, deserve to undergo same degree of scrutiny.

One example today of why this sort of approach is crucial, obviously, is President Donald Trump and his rhetoric. Those who criticize Trump for his inflammatory rhetoric often suggest some form of censorship - or to use a less loaded term (but still complicated in other ways) - regulation. But, this criticism of rhetoric should not take the place of criticism of content or even say motives. To focus on Trump’s rhetoric over the content of his claims, leaves open the possibility that the content may actually contain a bit of truth. Further, by missing the grain of truth, we risk not addressing the problem at all. This is not to say, however, that every instance where the President has resorted to inflammatory speech that underneath it all, he makes points worth considering. The point being made here is that we must remain committed to criticizing content first and foremost less so the form the content comes in (although form is important in other meaningful ways).

For philosopher of law Brian Leiter, it is important to distinguish mundane speech from non-mundane speech. Mundane speech picks out speech that involves making plans with friends, giving out directions, and so on. While, non-mundane speech refers to our conversations regarding politics, morality, and substantive discussions regarding metaphysics. Immediately, you may want to ask, why should we buy into Leiter’s distinction in the first place. To do so in this way, would be based primarily on intuitions rather than on well-established principles. For now, let’s bracket this concern for the sake of argument. Leiter also suggests that we take freedom of speech to be analogous to freedom of action. This point, while wholly uncontroversial, has some backing with much literation arguing as much - namely “speech acts”. Like actions, certain instances of speech can be benign or harmful.

Leiter’s position turns on the following question: Can we explain why the public sphere should be a free-for-all of distortion and misinformation, as it too often is in the US, while the juridical (i.e. the courtroom and other legal spaces) sphere, where matters of life and death, freedom and incarceration, wealth and penury, are decided, is not?

Now, one can first respond by pointing out the obvious differences between the two domains - courtroom and the public sphere. But, the most tractable or the most held response is that no entity exists that could reliably serve as the arbiter of truth or at the very least of right reasoning. In a courtroom, the judge serves as the arbiter of truth; ensuring that both sides abide by court etiquette and refrain from resorting to cheap tricks to manipulate a jury. To this point, Leiter provides few thoughts. Leiter surely provides enough motivating reasons as to why an arbiter should be sought out. He additionally provides reasons to doubt that any measures to monitor or regulate speech necessarily falls outside the “marketplace of ideas” approach to free speech. As Leiter points out, Mill puts forth conditions that should be met in order for it to hold that free speech be utility maximizing.

First, we must have the “maturity of faculties” to properly evaluate any and all claims put forth in the "market place of ideas.” Those who do not exhibit this maturity either for selfish reasons or for a history of poor upbringing, fall outside of this scheme of protection. That is, if any person engaging with ideas does so disingenuously should not expect legal or social protections. The difficulty, however, in both legal and social remedies, is how to regulate speech reliably such that we can pick out those who are genuinely committed to aforementioned conditions from those who are not. To this day, YouTube’s means of doing so has proven unsatisfactory in showing greater deference to established corporate media channels over the most well-intentioned independent channels. Attempts to limit or curb speech are proving to be more harmful, arguably, than simply trusting people to decide for themselves.

Perhaps, the hope here is that as private entities wrestle with the question of how to “improve” public discourse while maximizing utility and minimizing harm, they will get better at it. Better in the sense that discourse becomes more civil and efficient in solving societal pains. This will remain an open question, but one that we can certainly keep track of and can be measured empirically - that is we can see the effects for ourselves (maybe). The take away here, is that whether we should or should regulate free speech is derivative of whether doing so or not so remains welfare maximizing - beneficial to us in meaningful ways.

Here are a few questions, that remain:

Does maximizing free speech opportunities entail that we should never limit harmful and injurious forms of speech?

Should we be tolerant of all ideas, no matter their degree of repugnance? If so, what does this tolerance entail?

If there are no legal remedies to curbing hateful or injurious forms of speech, what are some social or non-governmental actions we can take to punish speech that does little for overall well-being?

Finally, is the all or nothing interpretation of the 1st Amendment acceptable?